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Contacting absent employees - what’s your motive?

The Employment Appeal Tribunal (EAT) has recently held in the case of Private Medicine Intermediaries Limited and Others v Hodkinson that an employee was constructively dismissed when the employer raised written concerns with her about her performance whilst she was on sick leave.

Any reasonable employer would agree that seeking to maintain contact with an employee during a period of long term absence is a key factor in facilitating a return to work; however this case highlights that employers have to be very careful about the particular issues they raise with an employee during a period of sick leave, especially if the reason for their absence is work related stress.

Background

The employee was a director of Private Medicine Intermediaries Limited (PMI) and suffered from a thyroid dysfunction and cardiac arrhythmia. PMI accepted that she was disabled for the purposes of the Equality Act 2010.

The employee was absent for a significant period and PMI sought recommendations from occupational health to assist with the employee’s return to work. When the employee returned, PMI implemented several adjustments to the employee’s working conditions, which included reducing her hours. PMI, however, did not implement two other adjustments recommended by occupational health, which were to carry out a formal review following a GP review and to hold weekly meetings with the employee.

After a month of returning to work, the employee was absent with work related depression and anxiety. The employee stated that she felt bullied and intimidated by her line manager and another director of PMI.

PMI’s CEO wrote to the employee asking if she wished to raise a grievance and to meet to discuss the issues. The employee said she was too upset and unwell to communicate properly and that she was likely to break down during any communication as she was distraught by the treatment she had received from the company since her last absence.

The CEO took legal advice, spoke to the HR department and again wrote to the employee suggesting a meeting. Amongst other things, the CEO’s letter set out six further areas of concern that he wished to discuss with the employee.

The employee subsequently resigned due to a breakdown in trust and confidence. Her letter of resignation specifically stated: “you make six further allegations relating to my performance and commitment, the timing and nature of which can only be intended by you to elicit my resignation”.

Following her resignation the employee raised claims for constructive unfair dismissal, discrimination arising from disability, harassment and a failure to make reasonable adjustments. The Tribunal made the following findings:-

The employee had not been bullied or intimidated by her line manager or company director.

The employee was not a credible witness and was prone to over-sensitivity and exaggeration.

The letter sent by the CEO was not part of a campaign to drive the employee out. The concerns raised had been genuine and had all previously been brought to her attention.

PMI should reasonably have known that the letter would cause the employee distress and she was therefore entitled to treat it as a repudiatory breach.

PMI’s failure to implement the two occupational health recommendations amounted to unfavourable treatment and discrimination arising from disability.

PMI had taken appropriate and reasonable steps upon the employee’s return to work and had not failed to make reasonable adjustments.

Employment Appeal

The EAT upheld the Tribunal’s decision that the employee had been constructively dismissed. It did not however find that the employee had been harassed or subject to discrimination arising from disability.

The EAT also considered the fact that the issues raised by PMI in its letter to the employee were not serious; did not need to be dealt with at that stage (in the knowledge that the employee was very ill); and in some cases, had already been raised and dealt with previously and were no longer an ongoing concern. The EAT also held that the Tribunal were entitled to conclude that the letter had been an integral factor in the employee’s resignation.

Practical Considerations

If an employee is absent with work related stress, it is good practice for employers to deal with any grievances before addressing any other concerns they may have, especially if those concerns relate to the employee’s performance. Employers also have to consider whether a particular issue is appropriate to address during an employee’s absence. In this case, PMI raised issues that had already been dealt with and were deemed concluded matters. We can therefore perhaps sympathise with the employee questioning the employer’s motive for raising those issues again during her sickness absence.

A reasonable employer should be able to demonstrate that its efforts to communicate with an employee during a period of absence are aligned with facilitating an employee’s return to work, removing any barriers that may prevent that and ensuring that an employee who has been out of the workplace for an extended period of time does not feel out of touch or isolated.

Compare jurisdictions: Employment: USA

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